Personal injury lawsuits are all uniquely complex. Medical malpractice actions in particular have additional statutory requirements that add to the general challenges of a civil suit. The Florida legislature enacted Chapter 766 to create a pre-suit procedure for all medical malpractice actions. This process requires a claimant to conduct an investigation to see if there are reasonable grounds for a medical negligence lawsuit. The injured party must provide this corroboration of reasonable grounds with a verified medical expert opinion from a person who regularly practices medicine and meets the requirements set forth in subsection (5).Hand and wrist If the defendant in the case is in a specialty, the expert must also practice in the same specialty.

A recently issued decision from the Second District Court of Appeal (2D16-4052) addresses the qualifications of a pre-suit expert. The plaintiff sought treatment from an orthopedist after breaking her toe. The defendant physician provided different types of care, including surgery. The problems with her toe remained, and the woman sought a second opinion. The second physician advised that the surgery performed was unnecessary for injuries like hers, and the injured woman filed suit against the institute where the first physician practiced. As part of her claim, the woman offered the required “corroboration of reasonable grounds to initiate medical negligence litigation,” accompanied by an affidavit of a board-certified podiatrist. The institute objected to the affidavit, claiming he was not qualified to testify as an expert because he was a podiatrist rather than an orthopedic surgeon. The injured woman did not respond to this objection.

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The civil judicial system is designed to help make injured parties whole by holding negligent parties accountable and providing compensation for expenses already incurred and certain expenses expected in the future. Damages for injuries may also include recognized setbacks that are harder to quantify like pain and suffering or loss of consortium. These damages are known as “noneconomic damages.” Florida Statutes sections 766.118(2) caps noneconomic damages in medical negligence cases at $500,000 per claimant. The damages can possibly increase to $1 million if the negligence resulted in a permanent vegetative state or caused a catastrophic injury. Subsection (3) has similar caps for negligence by non-practitioners at $750,000 and $1.5 million, respectively. Medical tubesThe Supreme Court recently issued a decision (No. SC15-1858) finding these statutes violate the Equal Protection Clause of Florida’s Constitution under Art. I, Section 2.

The plaintiff in the case originally suffered from carpal tunnel. She had surgery to address the problem but suffered from complications leading to additional and severe injuries. The injured patient’s esophagus was perforated when the medical team performed intubation as part of her anesthesia. The injured patient woke up with incredible pain in her back and chest. The anesthesiologist was notified. He examined her and then wrote a prescription for her chest pain. The doctor concluded that there was no issue with her heart, and the patient was discharged that afternoon. On the next day, the injured patient’s neighbor went to check on her and found her unresponsive. The patient went to the hospital and underwent emergency surgery to repair her esophagus and save her life. After several weeks in a drug-induced coma, the patient awoke and began intensive therapy to relearn how to eat and regain mobility. The injured patient has expressed that she continues to suffer pain in the upper half of her body in addition to neurological disorders from the trauma.

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In personal injury actions, an injured party or estate can sometimes seek punitive damages in addition to compensatory damages for medical care and lost wages. Punitive damages are intended to penalize a negligent actor for intentional misconduct and gross negligence. An injured party must show with clear and convincing evidence that the negligent person or entity knew that her or his behavior was wrong and had a high probability of resulting in an injury, or the party’s behavior was so reckless or wanton that it equaled a conscious disregard or indifference to life. The state of Florida limits the amount of punitive damages that may be awarded to an injured party. Typically, the damages awarded cannot exceed either the greater of three times the amount of compensatory damages or $500,000. books If the behavior is considered egregious or unreasonably dangerous, the cap may be increased to either four times the amount of compensatory damages or $2 million.

A recent Court of Appeal lawsuit (Case No. 5D16-863) analyzes a punitive damages award in a rear-end car accident case that resulted in serious injuries and death to the driver and passenger of the front car. The defendant was convicted of two charges of DUI manslaughter and sentenced to two life sentences. The injured driver and administrator of the deceased passenger’s estate filed suit against the drunk driver, originally alleging wrongful death and negligence. Eventually, the complaint was amended to include a claim for punitive damages, based on the drunk driver’s .302 percent blood alcohol level.

The trial was separated into two parts – one to determine the negligence and the compensatory damages and another for the punitive damages. The deceased victim’s estate was awarded $244,419 in damages, and the seriously injured driver received $75,144.35. At the beginning of the punitive damages portion of the trial, both parties submitted proposed jury instructions that differed significantly on the inclusion or exclusion of the defendant’s financial assets. The injured parties objected to the defendant’s desire to tell the jury of his limited resources. The plaintiffs believed that he would benefit by arguing he was in jail and unable to pay. The judge allowed jury instructions that advised they may consider the defendant’s financial resources but omitted the defendant’s proposed phrase admonishing that the jury “may not award an amount that would financially destroy the defendant.”

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Personal Injury Protection (PIP) is a benefit offered to motorists in their mandated auto insurance coverage. In recent years, the types of benefits paid were narrowed by statute, and those injured in a car accident have experienced greater challenges to getting providers paid. If the PIP benefits fail to cover the cost of treatment, the medical provider can seek the difference from the insured. This scenario is found in a recent Fourth District case (No. 4d16-1013). The plaintiff’s auto insurer paid some of the medical bills, but not as much as the the injured person expected. The injured person was billed the remainder. Dark Hospital The injured person asked the court for a declaratory judgment from the civil court system to show the auto insurer did not use the proper method when determining the reasonable amount to reimburse. The injured person alleged this calculation was not in her policy and asked the court to order the insurer to reimburse her and others like her.

Section 627.736 of the Florida Statutes allows insurers to choose between two methods to assess PIP medical reimbursements. The insurer can pay a reasonable amount, following the guidelines in subsection (5)(a)(1), or it can choose to apply the Medicare fee schedule, following the guidelines in (5)(a)(2) of the statute. If an insurance company chooses the latter method, it must provide notice to the insured that it is using this schedule. If this method is chosen, the statute prohibits providers from billing or collecting payments from the insured. In this lawsuit, the insurance company readily acknowledged that it did not choose the method relying on the Medicare fee schedule. The injured woman argued that they followed the fee schedule anyway and that she was inappropriately billed by the medical centers that provided her care. The lower court granted the insurer’s motion to dismiss.

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Florida applies the dangerous instrumentality doctrine in personal injury lawsuits, which holds the owner of a vehicle generally liable for injuries that are caused by the negligent operation of the vehicle, no matter who is driving. Not all states use this doctrine. In a recent decision (Case No. 5D16-1641), the Fifth Florida District Court of Appeal looked at whether or not the plaintiff and the defendant were subject to this doctrine when the accident occurred in South Carolina, and they were both Florida residents.Beach Road South Carolina does not have a dangerous instrumentality law. In South Carolina, they apply the Family Purpose Doctrine, which makes it harder to hold an owner liable for the negligent driving of another person using her or his vehicle.

The injured driver was rear-ended by the defendant-owner’s brother-in-law. The owner moved for a final summary judgment, arguing that South Carolina law prevailed, and he was not vicariously liable. The owner argued the case should be dismissed because there was no evidence that the owner negligently entrusted the vehicle to his brother-in-law. The trial court agreed, and the injured driver appealed. The appellate court of Florida agreed to review the lawsuit to determine which state’s law applied to the accident at hand.

To resolve conflicts of law, Florida uses the “significant relationships test” from the Restatement (2nd) of Conflict Laws, which looks at the connection the parties have to the state to determine which law to apply. The location of the injury is still taken into consideration, but the residence of the parties and the place where the relationship is centered are also assessed. With personal injuries, the default is to look at the location of the accident, but if another state has a more significant relationship under the test, that state’s law will be applied.

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Due process is an important element in both the civil and criminal branches of the judicial system. No court can hear from one side alone without providing the other side notice and an opportunity to also be heard. The Second District Court of Appeal issued an opinion on this issue in a recent case (Case No. 2D15-1952). In this lawsuit, the plaintiff was seriously injured after an inebriated truck driver slammed into his car at 60 miles per hour. The other passengers were also seriously injured but had settled their individual claims prior to the appeal of this action. The truck driver was driving a company truck at the time of the accident. Liability was not contested, but the cause and extent of the damages for the injured man were hotly debated.

The injured man claimed a variety of damages that included pain and suffering, past, present, and future loss of earnings, and medical expenses. The injuries were mainly for his back and arm. Highway SpeedingTo further complicate matters, the man was in another car wreck four years after the accident. The defendants accused the injured man of not completely answering the discovery responses with the candor required in court proceedings. The company defendant asked for the names of the medical providers who treated him. The man first answered in April 2012, a month after the second accident, and identified eight providers between January 2008 and April 2012. In 2013, he amended his answers to include several other providers, including a radiology center and a chiropractic center, between March and June 2012. The driver-defendant asked a similar set of questions in the later part of 2013, and the injured person again identified most of the providers but left out the radiology center and chiropractic center. He also answered the question of whether or not there were other accidents after the first one with “Not that I remember.”

During his deposition, he did mention being rear-ended but did not consider it an accident. He said that he was stopped at a stop sign, and a pick-up “touched us and took off quickly.” The injured man said that the car suffered minimal damage, but his back hurt much more following this event. Soon afterward, the company moved for the trial court to dismiss the injured man’s lawsuit, alleging the injured man testified falsely about the severity of the accident and failed to disclose his visits to the radiology and chiropractic centers. The motion included the written interrogatory answers and the deposition transcripts for this lawsuit. It also included a deposition for the second accident that included the injured man’s descriptions of the second event as an accident with a very fast impact. The court did not have a formal hearing on the matter and ruled solely on the documents submitted by the company. While the man briefly defended himself, he was not given an opportunity to be fully heard and present documents. The injured man appealed the dismissal.

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Eyewitness testimony in a car accident case can determine whether a defendant is held liable for negligence and the extent of the damages related to the injury. Courts can summon, or require, a person to appear in court or at a deposition to provide a statement and answer questions. However, sometimes a witness becomes unavailable or is incapable of providing testimony. Busted tail lightCourts have long recognized that small children may not be able to provide any sort of meaningful testimony and have measures in place to help determine whether a child is mature enough to participate in the litigation process.

The role of a child eyewitness became a central concern in a recent decision (Case No. 2d16-4018). The plaintiff-mother was rear-ended at a gas station by another vehicle while waiting to turn onto a road. The injured person’s son was the only other passenger in her car and was not a party in the case. At the time of the accident, he was eight years old. After the mother filed suit, the defendant driver raised two affirmative defenses, alleging that the injured mother was negligent and that she failed to use a fully operational seatbelt. As part of the proceedings, the defendant driver sought to depose the injured mother’s son but was rebuffed by the mother. The mother claimed that the son could not provide any meaningful testimony relevant to the proceedings, and submitting him to deposition would cause unnecessary embarrassment, burden, annoyance, and expense.

The mother testified at her deposition that her son remembered the details of the accident at the time, but they had not spoken about it recently. She asserted she was at a complete stop when the accident occurred and using a seatbelt. The injured mother described the pain she continued to suffer in her neck and shoulder as a result of the accident. The mother also revealed that since the accident, she and her son had gone to Busch Gardens and ridden adult rollercoasters.

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The Supreme Court recently settled a certified conflict between the Fifth and Second District Courts of Appeal, asking whether a party is required to disclose that their attorney referred them to a particular physician for treatment. The legal analysis hinged on whether or not the attorney-client privilege shielded a party from disclosures otherwise required by the rules of discovery. In a recent case (No. SC15-1086), the Supreme Court determined that in this scenario, there is a confidential communication between the attorney and the client, subject to the constitutional privilege.

Money AwardThe Fifth District’s decision was quashed, and the Second District’s was affirmed. In the Fifth District case, the plaintiff slipped and fell in a parking lot. After seeking treatment in an emergency room, she was referred to a specialist for the pain in her right knee. Due to a lack of money, she did not go, but she sought out representation. After retaining legal counsel, she was seen and treated by different physicians from an orthopedic institute and two surgical centers. The injured woman filed suit against the business that owned the parking lot, seeking damages for the cost of her treatment.

During the discovery phase of the litigation, the defendant business repeatedly tried to ask the injured woman about the relationship between her attorneys and the treating physicians seen after she hired counsel. The same questions were asked during the deposition, but the injured woman’s counsel objected, claiming the attorney-client privilege. Interrogatories were then sent by the business to the treating physicians, requesting information to help establish the existence of a referral relationship. The injured woman responded by asserting the requests were overly broad, vague, and unduly burdensome in violation of the Florida Rules of Civil Procedure.

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When an injured party seeks justice in a Florida personal injury lawsuit, he or she hopes for impartial fact-finders. To ensure a fair trial for all parties, the civil court system uses a formal process called Voir Dire in the selection of jurors. Several members of the community are called to potentially serve on a jury.  From this pool of citizens, the attorneys for the parties narrow the candidates by asking written and oral questions.  Wet FloorThe jurors are required to answer truthfully so that any disqualifications and biases can be figured out.

In a recent case (Case No. 5D16-1503), the defendant hotel asked to interview a juror and for a new trial following a verdict in favor of a woman injured in a slip and fall accident on its property. The trial court denied both motions, and the hotel appealed. Initially, the case was filed after the injured plaintiff fractured her kneecap after slipping in a puddle of water in the hotel lobby. The kneecap injury required several screws to be surgically placed in her knee. The lawsuit went to a jury trial, in which the jury found the injured woman and the hotel to each be partially negligent. Despite her partial negligence, an award of nearly $400,000 was granted to the injured woman.

During the Voir Dire phase of the jury trial, a juror questionnaire was filled out by each potential juror. Included were two questions that asked if the juror or a member of their immediate family had been a party to a lawsuit and if the juror or a member of their family had been accused, a complainant, or a witness in a criminal case. The juror at issue in this appeal had answered No to both questions, despite several criminal charges and convictions, a bankruptcy, and a divorce. The juror had also lied about her length of residence in Florida. The defendant hotel argued that if the juror had answered those questions truthfully, she would not have been on the deciding panel. To show that the juror’s deceit potentially affected the outcome, the hotel pointed to the major theme in its defense that the injured plaintiff was dishonest about her cellphone use at the time of the slip and fall accident.

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Florida case law has long held that the proprietor of a business must use reasonable care in maintaining the property. The owner or manager must learn the actual condition of the premises and then either make the area safe or warn of any dangerous conditions. If a condition is obvious, or one that can be readily perceived through the ordinary use of the senses, the proprietor is relieved of the duty to warn.  Stack of palletsA First District Court of Appeal decision (Case No. 1D16-1285) looks at what constitutes an obvious condition and when a proprietor is relieved from liability under premises liability law.

In the case, the injured patron of a grocery store went to make a purchase and obtain empty boxes. He made four trips in and out of the store. During these trips, another company was delivering a shipment of beer. The beer was stacked about five feet high on a pallet between the entrance and exit doors, with an empty pallet sitting on the delivery cart’s prongs to the right of the exit. The injured patron saw the empty pallet but tripped and fell, suffering injuries. The injured patron filed suit against the grocery store, alleging the store failed to warn of the dangerous condition and failed to keep the sidewalk safe.

During the early part of litigation, the injured patron provided an affidavit from an expert, alleging the store created an unsafe condition. The store provided still-shots from video surveillance. The injured patron had previously testified during a deposition that he did not notice the empty pallet on the first two trips, but he did notice it on the third. The injured patron testified that he tripped on the prong underneath the pallet, rather than on the pallet itself. After reviewing the evidence provided by both sides, the trial court granted the store’s motion for summary judgment, determining the pallets to be an open, obvious, and ordinary condition. The court found that the condition was not inherently dangerous, relieving the store of any duty to warn and liability for injuries.

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